Look, everyone is entitled to their opinion but that is beyond the pale. These are soldiers who have gone off and put their lives in danger by the direction of your Republic. If you want to make an ass of yourself go photoshop a picture of Bush, Rumsfield, Daschle, Gephardt or some other politician who bears responsibility:

The same prosecutor makes deliberately inconsistent arguments to two different juries in order to achieve a purposefully conflicting result and that's not a clear violation of somebody's due process? Personally, I'd prefer to be the guy appealing the second Defendant's case because it would seem impossible to prove beyond a reasonable doubt that one Defendant did something which another Defendant had been found guilty of beyond a reasonable doubt and for which only one Defendant could be held responsible1.

1 I don't see any indications of arguments about principles or accessories being made here - must not be viable under California law.

In California the Union and the Dept. of Corrections are in conflict over whether prisoners can be taught while in their cells or whether they must wait until they get to a facility which has classrooms. And it's the teachers who want to delay teaching.

In the Florida wrestling death, the prosecutors have offered a plea which will let the kid out of detention after a few more months. Bad press over sending a 12 year old to prison for life can have an amazing effect.

(1) The prosecutor's office is being challenged in lesser cases wherein it chose to ask for the death penalty because of the fundamental unfairness of letting the Green River serial murderer live while trying to kill someone else for a single murder.

This is interesting:

King County prosecutors responded with their own motion Friday and said the Ridgway decision has little bearing on the Champion case. They argued the Superior Court does not have the legal authority to address the fairness issue. It should be a matter for the state Supreme Court to decide, they said.

Ummm . . . the trial judge doesn't have the authority to decide a legal issue bearing on the trial? Since when? As I understand the way most court systems work the trial judge decides and the appellate judges / justices review. Of course, I guess the Supreme Court of Washington could have original jurisdiction but it seems unlikely.

27 December 2003

Lammers Law Office BulletinKris Kringle Arrested

Yesterday, in the County of Arrestafield, Virginia Detective Bluemart and a crack squad of Arrestafield officers swore out a warrant and arrested a man suspected of breaking and entering numerous dwelling houses of others, at night, with the intent to commit a felony therein. Apparently, the man had been under suspicion for a number of years but this is the first year that a "credible" witness has stepped forward.

The witness is a minor so we at the Lammers Law Office will not reveal her name. However, upon being appointed as counsel we have investigated her story and found enough incongruities that we believe the arrest unfounded in fact and law.

Initial news reports indicated that pressure from Homeland Security was a major factor in this arrest as the Accused is not an American citizen. However, the head of Homeland Security's new Yuletide Defense Section, Ben Scrooge, denied this calling it a bunch of "Humbug."

Arrestafield police released this artist rendering of the method by which they allege Mr. Kringle entered houses. When reporters confronted him with the obvious impossibilities of a man of Mr. Kringle's girth entering houses via fireplaces Detective Bluemart insisted that Mr. Kringle is a very dangerous fellow: "Mr. Kringle is an accomplished second story man who has managed to enter houses of all sorts throughout many years without a trace of how he has entered. The only confirmed method is the one depicted. Furthermore, Mr. Kringle is an international operator. We have traced his activities in multiple countries; this has not been easy because he has numerous AKA's depending upon which part of the world he is in: Kris Kringle, Santa Claus, Papa Noel, Saint Nicholas, Father Christmas, etc. As well, when questioned Mr. Kringle freely admitted to entering almost all the houses in Arrestafield County on the night in question. When I drove him around we couldn't go 50 feet without him pointing out another house he had entered. He also showed a disturbing amount of knowledge about the children of the County and was even able to list off all the children who had been involved in criminal activities in the last year."

We Need Your Help

Our investigation has uncovered some interesting facts which we believe law enforcement is sitting on. We believe that whoever the actual culprit is he acted with one co-defendant (pictured left). Be very, very careful if you spot this creature as we suspect it might be a jackelope and could turn out to be extremely dangerous if cornered. Your best course of action would probably be to send us an e-mail and track him until we arrive.

After having investigated the description of the actual perpetrator, we at the Lammers Law Office are very interested in speaking to this individual. He is almost an exact match of the description and (as you can see) he fits easily into tubes such as a garbage can (or a chimney). Known primarily by the moniker, "The Grouch," we believe it may have been the goal of this person to steal Christmas. We have a partial address but have not been able to go further than a street name. If anyone knows what city or State this "Grouch Who Stole Christmas" lives in we would be extremely grateful for your assistance in this matter.

As always, we at the Lammers Law Office look forward to the complete exoneration of our client and will make every effort in the defense of this wonderful man.

Generally, I agree with everything they have stated. However, they have inspired me to go off on my own tangent.

I must point out that - at least from my Virginian Defense attorney perspective - that "technicalities" almost always favor the prosecution and no one is upset when that occurs. If you don't believe it go and read any local legal publication which summarizes the decisions of your court of appeals. Invariably there are cases decided in the prosecution's favor because of procedural issues. Most often it seems the procedural error relied upon by the appellate court is that the error was not properly preserved - put another way, the argument in the court of appeals does not mirror the argument made in the trial court.

Example 1: Virginia Code secs. 19.2-11.01 and 19.2-265.01 purport to give a victim the "right" to stay in the courtroom even if witnesses are excluded "unless the court determines, in its discretion, the presence of the victim would impair the conduct of a fair trial." 19.2-265.01. Now, as I read that it means if a victim is not to be called as a witness he can stay in the courtroom; it could also possibly mean that if the victim is going to testify as to what happened on Monday and all the other witnesses are going to testify to entirely unrelated matters which occurred on Thursday then the victim can remain. However, some trial courts have read these statutes to mean that short of an affirmative showing of impairment by the Defense (an impossible standard to show pretrial) the victim stays in the courtroom. Anyone with a drop of sense can see how that interpretation is dead in the water as soon as it runs up against that pesky old federal constitution. The statute is darn near undefendable under the 14th Amendment due process right and the 6th Amendment right to a confrontation which is untainted.

And you know what? Our Court of Appeals has more than a drop of sense. This statute has been challenged twice. Both times, rather than address the unconstitutional application of the statute the court found a way to deny the appeal based upon procedural technicality. The first time the challenge was turned away because

At trial, appellant argued that until the evidence established that a person was a victim, the alleged victim stood in the same position as any other witness in the case and should be excluded from the courtroom. Appellant never argued that his due process right was violated. The Court of Appeals will not consider an argument on appeal which was not presented to the trial court.[U] Hague v. Commonwealth, (No. 1274-99-2, 23 May 2000)(citations omitted).

The second time the challenge was turned away because

On appeal, the defendant contends the trial court erred in failing to exclude Chesnut from the courtroom pursuant to Code § 19.2-265.1. He argues the statute requires the exclusion of all witnesses, including victim witnesses, and that the victims' rights statute, Code § 19.2-265.01, is inapplicable. This argument is different from, and actually conflicts with, the argument he raised at trial: that Chesnut should be excluded under Code § 19.2-265.01, the victims' rights statute, because his presence would impair the trial. Nothing in the defendant's argument at trial indicated that he thought the general statute, Code § 19.2-265.1, controlled rather than the specific statute, Code § 19.2-265.01, dealing with victims.

Though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the benefit of the lower court. We will not consider an argument on appeal which was not presented to the trial court.[U] Woodell v. Commonwealth, (No. 2241-00-3, 05 Mar 2002)(citations omitted).

Example 2:

First: NCIC records are spit out by machines in the prosecutors' office (and I assume the police station). They are not kept in the clerk's office and can in no way be certified by the clerk as "judicial records" under the hearsay exception provided by Va Code sec. 8.01-389.Second: NCIC records are hearsay and notoriously subject to inaccuracies. I have sat in a prosecutor's office reading a record which says my client - arrested two weeks before the meeting - had been found guilty of murder and locked away for life ten years prior. I've had police go to the wrong part of the Commonwealth to arrest someone who shared the same name as my client because they thought that person was the one the NCIC applied to. I've had a client accused of being a felon in possession of a firearm because NCIC showed him as having committed a felony when the Navy had him deployed overseas. And any number of times I've had the NCIC show a disposition for a case which, when we got ahold of the actual court records, had been dismissed or reduced to a lesser offense.

Third: There is no statute allowing NCIC reports to prove a Defendant's record - at least none I know of.

Fourth: To prove a felony petit larceny in Virginia the prosecution must prove that two prior larceny (or similar) convictions have been entered against the Defendant.

During a trial for felony petit larceny the prosecution attempts to enter the NCIC report into evidence to prove the prior convictions:

At trial, Investigator Kristie Siron of the Staunton Police Department testified that the felony theft charges were based on Argenbright's record of prior convictions for similar offenses. When shown a copy of a computer printout of Argenbright's NCIC record by the Commonwealth, Investigator Siron identified the printout as appellant's criminal record. The Commonwealth then offered the printout into evidence. Argenbright objected and the following exchange took place:MR. BOBBITT [Defense Attorney]: Your Honor, I'm going to object to the--this printout, I mean I would think that there ought to be copies of the--of the-- certified copies of the conviction if they are going to establish that he was convicted.MR. ROBERTSON [Commonwealth's Attorney]: Judge, there is a statute that allows the record to come in.JUDGE: Isn't that true Mr. Bobbitt?MR. BOBBITT: I think he's probably right, but I'm not sure about that so I'm--I'm going to object to it.JUDGE: I'm going to admit it, it's Commonwealth's One.

The trial court relied on the information contained in the NCIC record to prove the prior convictions required under Code § 18.2-104 to convict Argenbright on thirteen out of eighteen felony charges of obtaining money by false pretenses under Code § 18.2-178. The court subsequently sentenced him to the penitentiary for ten years, with seven years suspended. Argenbright appeals the thirteen convictions elevated to felonies pursuant to Code § 18.2-104.

ANALYSIS

The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.

Both at trial and on appeal, Argenbright argued that only certified copies of court records of his previous convictions were admissible to prove the prior convictions necessary to convict him pursuant to Code § 18.2-104. While he objected when the Commonwealth sought to admit the printout of the NCIC report, his sole argument was that only certified copies of the convictions were admissible for that purpose.

Argenbright argues for the first time on appeal that the trial court erred by admitting the printout without proper certification pursuant to the Code § 8.01-389, the judicial records exception to the hearsay rule. We will not review on appeal a specific argument not raised before the trial court absent a showing of good cause or as necessary to attain the ends of justice.

. . .

When Argenbright objected to the offer of the printout of the NCIC report into evidence, the Commonwealth asserted that there was "a statute" that permits the NCIC report to be admitted into evidence. In response, the court stated that it also thought a statute permitted the admissibility of the NCIC report as evidence, and asked if Argenbright agreed. He responded that he agreed that the Commonwealth was "probably right but I'm not sure about that so I'm--I'm going to object to it." Argenbright articulated no other grounds to the trial court as to why the NCIC report should not have been admitted into evidence. Neither the trial court nor the Commonwealth's attorney identified the statute "that allows the record to come in." On appeal we will not speculate on which statute the court may have relied.

Absent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption that the judge knew and correctly applied the law. Argenbright argued that the evidence was inadmissible solely because the NCIC printout was not a certified copy of the court record of his prior convictions. He did not object that the NCIC report was not accurate or that it contained erroneous information. Finally, Argenbright did not object to the NCIC report as inadmissible hearsay or that it had not been properly authenticated. Neither did he object on the grounds of lack of adequate foundation. His failure to raise these objections to the trial court constituted a waiver of these objections. We will not consider them for the first time on appeal.Argenbright v. Commonwealth, (3282-02-3, 25 Nov 2003)(citations omitted)(emphasis added)

While inartfully argued, the practical reality is that the only records which can be introduced are certified copies of prior convictions. NCIC records are hearsay and cannot be certified as judicial records since they are not in the clerk's office. The Defense attorney clearly has an objection that the convictions are not being proven by the one truly possible manner. The prosecutor and judge try to push him off of that objection; he bends but doesn't break - he maintains his objection. And still, his argument is found technically inadequate. The Court of Appeals has to go pretty far to find it technically inadequate but they do (when's the last time you've seen an appellate court assume a fictitious statute in order to make its decision make sense?).

Why? Why, you ask, do the Defense attorneys not make rock solid, coherent, cogent arguments to preserve their objection? Well, it's because the arguments are made off the cuff. Often it's an argument on a statute / rule which both the prosecutor and judge are disagreeing with you about, with no notice that you are going to have to argue about that particular legal point, and you must make sure you do it well enough that an appellate judge and his clerk with as much time as they wish to take cannot find some angle to throw it out. It's dang near impossible to preserve an error mid- trial if the appellate court really wants to throw it out on procedural grounds.

23 December 2003

Patrick was a 14 year old honor student, who had no prior record. Along with an "of age" kid, he broke into a boatyard to steal a radio. When they saw a video camera the kids made a mistake of gargantuan proportions. In an attempt to destroy evidence they burnt the boatyard down. And the feds brought the wrath of God down on the kid's head.

Why? Because a boat engine at the shipyard belonged to 41. There are statements about the case being undertaken in federal court because the evidence looked weak when the State "asked" the feds to step in and devote their more considerable resources to it and because arson is a crime of violence. However, the article makes it pretty clear that all the substantial evidence was already in hand when the case was "given" to the feds. And, hmmm . . . I know I've never heard a juvenile court judge whine, "I just can't handle this case because there's violence involved."

The State and feds seem to have concurrent jurisdiction here if I remember my conlaw correctly (navigable water=connection to interstate commerce) but it seems to me that this is a case where the proper exercise of prosecutorial discretion would have been to allow the fully developed State juvenile system handle the situation. Instead:

He was given the maximum sentence allowed: 30 months incarceration, followed by 27 months of probation. He was then sent to a maximum security juvenile facility in Pennsylvania on the order of the federal Bureau of Prisons.. . .Patrick is being kept at the Cresson Secure Treatment Center in the central part of [Pennsylvania].

Cresson is for the most serious juvenile offenders in Pennsylvania who have proved disruptive in other facilities. Patrick is now housed in a wing where the other inmates are all mentally ill or mentally retarded.. . .[T]he education he is receiving . . consists of Patrick's volunteering to tutor the other boys in reading or arithmetic.

Federal law requires that juveniles convicted in federal court be provided with proper education, and that "whenever possible" they should be kept in a facility "located in or near" their home. Cresson is 570 miles from his home.

Personal observation: This case brings to mind an article in a recent edition of the Virginia Lawyers Weekly. Written by a federal judge, it basically said the worm has turned and urged Defense attorneys to fight their cases through. The logic seems to be that the obnoxious guidelines combined with the fact that more and more trivial criminal matters are being brought in federal court has brought disfavor upon the prosecutors1. Personally, I cannot confirm or deny this because these pieces were already in play when I started watching the federal courts but I can say that prosecutors seem to get far more deference in the State courts wherein I practice.

This matter seems to be a case study in exactly the kind of case which shouldn't have been brought in federal court. Putting a 14 year old in a detention home should be a last resort (although, in this case a couple months over a summer might have scared some sense into the kid) and 30 months is basically writing the kid off. He may be a honor student now but, even if he's put in a good juvenile facility, by the time he gets out his education will be far behind those of his age. And if he remains in the place he's at now he will have spent almost three years learning to survive among the youths with whom your worst nightmares are populated. Chances of recovering from this are almost nil (and I say almost because there is always hope for some miracle). How does this serve either society or the youth?

Hour four: Shoo the overpaid jury consultants out of my office - or better yet, go to lunch with the head jury consultant so that lunch at Chez Expensive gets charged to Martha Inc.

Hour five: Talk with co-counsel (or if desperate associates) about the jurors and recommendations from overpaid jury consultants.

Hour six: Mark all the people off the jury that I don't want on it (probably the same ones I would have done in 15 minutes).

Hour seven: review to make sure I didn't make any mistakes.

I can almost stretch it out to a whole day if I try real hard. Of course, I come from the realm of flat fees so I've not perfected the skill of hourly billing. If I worked at mega-downtown firm maybe I could stretch over a few days so that I could increase my billable hours.

I guess sometimes - even when you choose the most likely jurisdiction, in the most likely State - little glitches occur in your attempt to make sure someone gets killed. General Ashcroft, on behalf of the Bar of the Commonwealth of Virginia, I'd like to introduce you to Mr. Craig Cooley.

21 December 2003

Line of Fire: The FBI v. the Mob in Richmond

I watched Line of Fire for the first time last week. I took the time to watch it because it is supposed to be taking place in Richmond. Things I noticed:

Nobody in the show speaks with a Virginia accent. One person speaks with a mountain accent but nobody sounds Virginian (hint to the producers - the key is in the way native Virginians pronounce their O's).

All crime is run by a syndicate in the Fan. Hmmm . . . Well, I guess it's possible . . . But why not set up in Bon Air, or Midlothian, or Brandermill, or the West End. Well, I guess you could run into honest police out in Chesterfield County or Henrico County (the show makes it very clear that Richmond's police are not so upstanding). So you could set up in Windsor Farms. It's in the city and you could run the syndicate out of one of the mansions during the week and on weekends hop over the river and hit a few balls at Willow Oaks.

Everybody's white. Yes, you read that correctly, Richmond has suddenly has suddenly had a massive change in demographics. There is nary a black face to be seen. Where did everybody go? Or maybe if you're a crime boss in Richmond you don't have to deal with Church Hill, Mosby Court, Broadrock, &cetera?

And I don't know what building it was but the building which was supposed to be Richmond's juvenile & domestic court was not the echo chamber which Richmond built on top of a trash dump and almost had to abandon because of the fumes.

And it goes on and on. Outside of all the things I noted because of the proximity to my locale, the storyline is typical and the show is adequate but not spectacular. I'll probably watch for a couple more weeks trying to see if I recognize anything Richmondlike about the show (it is obviously being filmed somewhere else). But I cannot recommend it to you fine people.

My only worry is that when I initially heard this announcement on the radio Transportation Secretary Norman Mineta stated that Santa was cleared to go from house to house to deliver toys (sorry can't find anyone on the web who directly quoted his speech). However, as I remember it there is a fair amount of coal involved here too. What happens if an AWAC spots a low flying craft with a large amount of combustible material nearing D.C.?1 Will some rocket jockey fly his F-16 down from the CAP and try to take Santa out? While I suspect that a vehicle which flies to millions upon millions of households in one night - including delivery and refueling times (milk and cookies) - has the speed and manueverability to make an F-16 look foolish I really don't want to take the chance that somebody gets off a lucky shot. I urge you all to write Secretary Mineta and urge him to amend his order immediately. Don't wait. There only a few precious days to get him to fix this.

1 I mean, think about it, where else could all the coal be going? If I was good enough to get the presents Santa left me as a kid you'd have to be pretty rotten to get coal. It's gotta be going to politicians. And I've even found proof:

Apparently, jurors are too nice for prosecutors during the Christmas season. On the other hand, there's always the possibility that some jurors who might have held out will convict so they can get out of the courthouse and back to shopping, baking, cleaning up before the relatives visit, etc.

20 December 2003

In the spirit of full disclosure, I must say that I am a fan. The local talk radio station carries 4 hosts whom I listen to as I drive around during the day. Rush is my favorite of the four. I don't always agree with him but he has a good show which is always interesting to listen to and usually attempts to reason things through.

Of the others I find Glenn Beck to be hit or miss but peppered with enough humor to keep it interesting. If you can find it his "Merry Christmas from the Nation Bar Association" bit is hilarious. I'm too cheap to subscribe to his site just to download it but it truly brightened my morning as I drove to court this week (the people in the car next to me must have thought I was a madman I was laughing so hard).

Michael Graham keeps me interested because he follows the local Richmond politics where there is plenty to pick at (what does it mean if the FBI hasn't arrested someone in the City government this week? The agents were on their Christmas break.). The only thing I don't care for is that sometimes he feels like he's taking a contrary position just to get an argument from callers.

And then there's Michael Savage. I only hear Savage while I'm driving home from the office at night (he comes on at 7 p.m.) and usually the channel gets switched to sports radio after 5-10 minutes. I just can't take it. The weird thing is that quite often he is advocating things which I believe in and he still manages to make me so mad that I can't listen any longer. That's hard to do.

Today the winningest program in college football squared off against the winningest coach in college footbal for a national championship. And I'd bet good money that most people don't even know.

Last Saturday the Mount Union Raiders won their 55th game since their last loss and set the national record. The record it broke was 54 games set by the Mt. Union Raiders immediately prior to its last loss (that's a 109-1 record). It is a football machine which has won 6 of the last 7 national championships.

The two teams played for the national championship in 2000 with the Raiders winning 10-7 on a field goal with one second on the clock.

Today these two teams met without a lot of hoopla and settled it on the field. Why didn't you hear about it? Because they are both Division III teams. In case you don't know, that means the kids play without athletic scholarships. They have to actually meet the school's criteria to get in, they have go to class, and they will go on to graduate school or jobs after they finish college - not the NFL.1

They met in Salem, Virginia, played an exciting game, left it all on the field and the winner was . . .

Just in case someone out there has had their head in the sand, Malvo was convicted yesterday. Not that it wasn't expected. Some of the jury undoubtedly did not find the Defense's theory credible and even those who did had little incentive to find the young man not guilty. I've heard the reason for this explained a couple different ways. One of the best was by a lawyer warning about the dangers of doing a death case in rural areas. He said that what you have to worry about is the "farmer mentality." If something goes wrong with one of your cows you get rid of it to save the others. You don't ask if it's the cows fault; you could care less about its mens rea. But, you say, Chesapeake is not exactly Iowa. Well, O.K., then look at it this way: animals who group together will often expel members who cause trouble for the pack/herd/tribe. We are not above this. How many lepers have been expelled from societies over the centuries? How many serfs thrown off the thane's land for not raising enough grain to pay his tribute? Or put in more modern terms, if Bob can't or won't keep up at the plant's assembly line how long before he is shunted into some meaningless side job or fired? Removal is an instinctive reaction meant to save the group as a whole. And, even assuming that the jurors knew that a finding of insanity means commitment, I think it's a safe assumption that someone probably heard about Hinckley running around unsupervised nowadays. The question now is whether the jury will excise the failed/dangerous member of society thru banishment or death.

(2) Conjecture that the insanity defense will have set the stage for the Defense to keep the jury from approving the killing of Malvo.

(3) Malvo's doodling throughout the trial was constant. Now comes news that he was using a stab proof pencil. You know, we could have used a few of those in elementary school. Every kid I knew got stabbed by a pencil at least once. Of course we used to play "sword fight" with them so maybe we deserved what we got.

Here's What Happens When the Government Can't Keep "Enemy of the State" Cases in the 4th Circuit.

In a case which is decided properly, the 2d Circuit finds that a citizen cannot be designated an "enemy combatant" so that he can be held indefinitely and denied constitutionally recognized rights including access to an attorney and all the due process protections. Here's the majority opinion and here's the dissenting opinion.

In a case which just screams "I AM WRONG - OVERTURN ME!!!" the 9th Circuit rules that enemy prisoners of war have the same rights:

When I finished my case today I stuck around to watch a trial on a misdemeanor DUI and a preliminary hearing for DUI Manslaughter.

The prosecutor was the only one to put on any evidence and it was basically this: The Officer testifies that he was told by Defendant that he and his Best Friend get off work early in the morning and go to get breakfast. They split a pitcher of beer over breakfast, then they hang out until lunch and split another pitcher of beer over lunch. Driving back from lunch Best Friend stands up in the Jeep and hangs on to the roll bar. Defendant has to hit his brakes because of the car in front of him and Best Friend is thrown forward out of the Jeep. Statements are allowed in despite the fact that the Defendant was being held in a police car when this particular Officer arrived on the scene, the Officer testified that Defendant was not free to leave, and the Officer never read the Defendant Miranda. The Officer testified that the Defendant was upset over the death of his friend when the Officer administered 4 sobriety tests. The first administered was the "heel to toe walk a line" test. Defendant tries to start two times and the Officer stops him to keep him from doing the test before he receives the complete instructions. Defendant then walks 9 steps forward and turns and walks six steps back. One of the first nine steps is not in a straight line but the rest of the test is perfect. Defendant then passed the hand dexterity test. Defendant then passed a number counting test. Defendant then passed an alphabet test. At this point, the Officer reads him the statement of implied consent and takes him to the station for a breath test. The test was a .08 BAC.1 The BAC analysis is admitted over Defense argument that there was no probable cause as is needed to require citizens to submit to the BAC test.

Another prosecution witness - driving in the car behind - says she saw Best Friend doing things to mess with Defendant as he is driving; then she sees Best Friend stand up in the Jeep, holding onto the roll bar. She allows her car to fall back some from the car because of what Best Friend is doing. Then she sees Best Friend disappear and the car brake and swerve to the right. She pulls over and tries to call 911 but police arrive before she can. She sees the Defendant sitting in the street cradling Best Friend (now dead) in his arms. On cross she testifies that Defendant was driving correctly, no swerving, no dodging in and out of traffic, not even speeding.

The prosecutor looked like he was in pain. It was obvious that someone higher up the food chain had handed him this dog to try and his own witnesses were making the Defendant look sober. The only true evidence of intoxication was one step out of 15 in the line walk. But he need not have worried. The judge found the Defendant guilty of DUI and certified the DUI-Manslaughter to the grand jury. How? I have no idea.

During the sentencing phase for the DUI, Best Friend's parents both testified that they did not want this case brought against Defendant and that he had suffered along with the family and they did not want him punished further. The judge gave the Defendant 30 days in jail.

All I kept thinking, throughout the entire hearing, was: Why in the world would the prosecution go forward on a case like this?

1 If you've done any work at all with DUI's you realize very quickly that no matter what the law says almost no one is inebriated at .08. Still it is the level at which you are presumed guilty under the law and the Commonwealth no longer has to prove its case beyond a reasonable doubt. I have read the sophistry and apologetics in the decisions of various courts appellate; please don't write me telling me I'm wrong about the burden shifting. If it walks like a duck and quacks like a duck, it's a duck.

Personally, reading about the case from afar, I think there is about a 70-80% probability of conviction. At the beginning of the trial the prosecution started out with a 99% chance of conviction but the Defense has chipped away. The Defense has offered better testimony and a sympathetic theory which sells much better than the prosecution theory that this was all part of a scheme - which Malvo was an equal partner in cooking up - to extort money from the government. I think that at the end of the trial the probability of conviction had sunk somewhere between 50-60%. However, the prosecution seems to have done a far better job in its closing argument than the Defense and I think that hurt the Defense badly.

Not that any of this matters all that much. If the kid isn't sentenced to death in this trial they can just que up one after another until one of them returns the desired verdict.

The two sides presented closing arguments yesterday. The judge refused to allow an instruction on irresistible impulse. As always the argument for not allowing the instruction is that there is no evidence to support such a finding - which one would think ought to be the jury's decision.

This raises an important question: exactly how many people are police allowed to arrest in order to shake them down in an attempt to get a confession? If officers stop a bus rented by members of the same organization (let's say the SSDP) and find a bag with 5 pounds of heroin can they arrest all 40 people in the bus? If someone is shot dead in a bar almost exclusively frequented by the Outlaws can officers arrest all 100 people in the club? Since the Court has put its imprimatur on rounding up the usual suspects, will it allow police to round up twice the usual suspects in really serious cases?

When a person commits a crime that seems totally alien to his personality and background, people are puzzled and shocked. In my experience, a crime only appears to be "out of character." If you develop a thorough understanding of the perpetrator's mental makeup, you will learn that there is precedent if not in behavior, then in thinking for the crime to occur. The quiet man who murders his wife in the heat of an argument may not have planned the homicide in terms of a specific date, time, and place. However, in his mind, he had killed her many times during previous conflicts. This is a person who, instead of coping with the adversity, fantasized numerous times destroying the adversity. Thus the occasion in which the actual crime occurs truly reveals the perpetrator. It is within character if one only knows his or her true character.

And, amazingly, this man has never seen a Defendant who wasn't guilty:

Wow. And I thought the Defense witnesses were going to look biased - he makes them look positively middle of the road.

If you are the prosecutor why do you do this to your case? Why not go to a simple middle of the road psychological expert who will almost certainly come to the conclusion that Malvo is legally sane? This guy is like shooting yourself in the foot; all he does is make the Defense look better because you were so desperate that you went out and got a witness who (from his writings and history) seems incapable of admitting that anyone might be legally insane.

15 December 2003

Scott Peterson:

The Defense wants to change the venue because publicity could keep Peterson from getting a fair trial. I don't know where they think it could be moved. Perhaps to a county where only Amish live? Do they have those in California?

Go to General District Court in Powhatan County for a return which is not called because my client has successfully completed his obligations and didn't have to come back to court. At 11:00 leave and drive to Richmond to go to Federal Court for a detention hearing. After a hour plus I arrive in Richmond and meet with the client in the Marshal's office. Then I go down to the courtroom and meet his family prior to court. They go into shock when they find out that the mandatory minimum for the 21 counts is 60 years (and probably more). The AUSA comes to the courtroom and makes the normal noises about how guilty the client is but otherwise seems pretty straight-forward. After the detention hearing the judge sets an arraignment time for 9 a.m. on 12 December 2003 and I have to agree to the date blindly because they took my PDA from me when I came in the courthouse and therefore did not have my calender. When I get back to my office and pick up the file to enter the date in my calender I find out that there are already two cases scheduled for that date but it's too late to do anything about it that day.

08 December 2003 ~ Monday

No court scheduled so I spend the day trying to catch up on paperwork. I download a PDF of the federal sentencing guidelines and put one of my computers to work printing the thing out. It only takes about 6 hours and when finished it looks like this:

left is Va. guidelines - right is federal (twice as big unbound)

09 December 2003 ~ Tuesday

Morning:Go to court in the city of Colonial Heights for a felony domestic assault. Meet with the new Assistant Commonwealth Attorney who seems like a decent guy. A prosecutorial witness isn't there so the prosecution is prepared to ask for a continuance but my client decides to plead guilty so he can get his case over as quickly as possible.

Afternoon:Go to court in Chesterfield County for a preliminary hearing on cocaine possession. Case continued because the prosecution does not have its lab in proving that the stuff actually was cocaine.

10 December 2003 ~ Wednesday

Morning:Go to the office at 5 a.m. in the morning to try and get paperwork and things done before court. Fax motions for continuances to Powhatan County prosecutor and clerk offices because I have not been able to get the federal court date / time changed.

Go to court in the morning for a really nasty case wherein my client is charged with battery for choking a woman. Prosecutor calls three witnesses during the sentencing hearing telling how he ran up and choked her. My client explains in his testimony that his action came as a reaction to someone attacking him in her name. The entire case is basically a trainwreck during which I can't do much more than stand by and watch. The highlight of the case was probably when I tried to get the judge to put my client into anger management in lieu of some of the jail time - the judge refused and basically said my client was too angry to go to anger management. Client gets the max: 12 months.

Afternoon:Run down to Colonial Heights for a quick motion. The prosecutor is going to move for nolle prosequi (that's a dismissal without prejudice for those of you who work in jurisdictions that use English). The whole thing should take 5 minutes. Of course, the case is not called until I've been there about a hour and half. The client leaves happy but I'm running late.

I jump in my car and head out to Orange County to meet with my federal client. The feds seem to have some unwritten rule that they must keep prisoners at least a hour and thirty minutes away from the location of the courthouse in Richmond. Driving as fast as I can (while of course, never breaking the speeding laws of Virginia), I arrive at the jail at 4:15 p.m. and am denied entrance because the jail shuts down between 4-7 p.m. I'm told to come back at 7. I leave and go look for something, anything to do to kill three hours. At this I fail miserably because the entire Town of Orange shuts down somewhere between 4:30 and 5 p.m. I think they roll up the sidewalks at 6 p.m.

So I end up at the local Hardees. I order a combo meal, set up a mini-office in the non-smoking section, and eat real slow as I go over the facts and laws and sentencing guidelines for my client. At about 20 minutes to 7p.m. I go back to the jail and can get in to see my client. The meeting is a little strange. I leave and enjoy a 2 hour drive home in a pouring rain which is about 1 degree from freezing. And one of my headlights goes out on the way home. Get home a little before 10 p.m.

Miss about 3-4 Christmas parties which various firms / Bars / Courts are having this night.

11 December 2003 ~ Thursday

Morning:Go to Chesterfield court at 8:30 a.m. and find out that the case is actually at 1 p.m. Stick around the courthouse for the morning catching up with other lawyers and deputies and officers.

Afternoon:Show up for 1p.m docket expecting two clients to be on the list and there are three. This is not good. I scramble around trying to figure out who the third is and finally figure out that he is a show cause on a case where another attorney had been hired about 6-8 months back and my name is on the list because of a computer error. That deals with one.

The second client is easy. The client is being released from custody in order to enter the Dual Treatment Track program which helps deal with mental problems and addictions.

The third client ain't good. He's charged with concealing a firearm and brandishing a firearm. He decides that he wants to plead not guilty. We go up and plead. The prosecutor puts on his primary witness who is a little creepy. He testifies that he sees Client waving his hand tailgating him and then realizes that Client has a gun. He testifies on cross that he can see the gun clearly despite the windows of Client's truck being tinted. He testifies with confidence that Client's gun is a silver barreled gun with a black handle. He testifies that after he calls 911 to tell them he has been threatened by someone with a gun, the dispatcher tells him to follow the person who threatened him with a gun and he proceeds to follow Client's truck thru hell and high water as Client does all sorts of lane shifts to try and shake him.

Prosecutor calls the officer who responded. Officer shows a gun which was sitting on the passenger side seat and it is an entirely black gun. Then officer shows the gun which was concealed in the back of the extended cab, in a sack, in a pouch on the wall of the cab behind the client. This gun, which could not have possibly been used by Client, matches the victim's description exactly. Hmmm . . .

I call my client. In previous discussions Client has been a little slow but lucid. When called he turns into mush. He can't string three words together. Finally, with a little bit of indulgence from the judge and prosecutor I am able to lead him thru his testimony. He says he passes a car and it starts tailgating him all thru the area. He pulls out his pistol and places it on the seat next to him because he is scared. Finally, he thinks he has lost the car and goes to his ATM machine to withdraw money to make his truck payment - and is swarmed by police.

I know Client's lost the concealment but I think the witness' suspicious statements and ID'ing a gun which could not possibly been in use have at least placed the brandishing very much in play. The judge discusses the concealment charge for a few seconds before finding guilt and then just baldly finds guilt in the brandishing without addressing any of the "interesting" parts of the witness' testimony. I'm not happy with the verdict but I bite my tongue.

Then comes the fatal question: "Tell me something about your client." This judge does that to me every so often and I think I have something of worth to tell him about 1 out of every 4-5 times. Sometimes I've nothing because my client has just gotten out of a couple of months in jail, is unemployed, and lives at a motel we all know is a drug hangout. More often, it is because the client never comes to see me (despite my weekly open office hours from 2-5 on Fridays) and I only get the information from him on the fly when we come to court on his trial date. Most often the excuse for not having come to see me is work. So, I turn to the Client and ask him where he works. "I used to work at . . ." And it just went downhill from there. I knew my client's criminal record so the judge asks me what is on his traffic record (even though it is inappropriate to ask a Defense counsel about his client's record because counsel is not supposed to reveal what his conversations with his client might have revealed and Defense counsel does not have easy access to official records as prosecutors do). The judge sends the prosecutor to go get the official record and the three speeding convictions are introduced. The judge calls the guy's mother out of the gallery and asks her questions which basically reveal what is obvious to all in the court: the Defendant is slow but not mentally deficient in any way which would effect competence or legal sanity.

By the time I leave the court I am ready to spit nails. I kept my mouth shut and bit down pretty hard on my tongue but I'm afraid it did not do much good. I'm light skinned and when I become upset I turn red, when I become very upset my ears turn red too and I can feel them burning. My ears started burning from about the moment that the judge pronounced guilt and kept going until I walked with my client back to the holding area so he could start serving the 6 months the judge sentenced him to serve. The case is now being appealed to the Circuit Court.

When I arrive back at the office there are messages. I put out a couple fires and then the very last message is one from another attorney who has been hired by the family of my federal client to take my place (because it's always better to pay $10,000 to get the same result with a "paid" lawyer). By the time I calm down and get everything finished for the day it's after 9 p.m. and I realize that I have missed another Christmas party a firm was having that night.

12 December 2003 ~ Friday

In office at 5 a.m. Realizing that I have not received a fax copy of the judge signing an Order continuing my State court cases I send a fax to the clerk's office in Powhatan County telling them that if they have not continued the cases to please hold them because I expect the substitution in federal court to be quick and I will probably be able to make it to Powhatan by 10:30 to handle my cases.

I leave for federal court about a hour early because I expect to get caught in commuter traffic. Of course, there is none and I get to the courthouse 35 minutes early. I go to the cafeteria and drink a cup of coffee. Then, when I go back to the courtroom I realize I've gone to the wrong one and, with the help of a Marshal, I figure out which court I'm supposed to be in and rush over there. I get substituted out and watch the whole 5 minute arraignment wherein the Defendant pleads not guilty to all charges and then his new attorney sets a disposition date about 3 weeks out (meaning that the Defendant is probably going to plead guilty).

Then I burn rubber for Powhatan County (once again never exceeding the posted speed limit). I get there about 10:20 and realize that one of my clients was not shipped while the client who was on bond is present. After I've been sitting there for about 10 minutes, the judge stops in the middle of his docket and tells me that my cases were continued so I don't have to stay.

I return to my office and spend a glorious afternoon cleaning because I must be in the office between 2-5 p.m. for open office hours. Nobody showed up but I was there.

Ambush in Bartlette

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.